Watson v. . Shields

Supreme Court of North Carolina

Watson v. . Shields

67 N.C. 235

DecidedJune 5, 1872

StatusPublished

This text of 67 N.C. 235 (Watson v. . Shields) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Watson v. . Shields, 67 N.C. 235 (N.C. 1872).

Pincite

Opinion

Eeade, J.

The C. C. P., S. 133, authorizes a judge to “ relieve a party from a judgment, order, or other proceedings taken against him through his mistake, inadvertence surprise, or excusable neglect,” &c. And upon application for such relief, the Judge finds the facts, and grants, or refuses the motion, and from his judgment an appeal lies by either party. This is much more convenient, expeditions, and less, expensive than an application to the Supreme Court for a Certiorari, as a substitute for an appeal. Under our new Constitution, it is much the more appropriate remedy, as the Judge below finds the facts, and we only review his legal conclusions; whereas, in applications for certiorari we have to find the facts, and although *237 it may not be within the provision, that we shall try no “ issue ” of fact; yet we prefer not to try, when it can be avoided, any “ question” of fact, as contradistinguished from an issue of fact.

In this case the facts are. seriously disputed, and we think the petitioner ought to proceed by an application to the Judge below, under O. C. P., S. 133.

Motion for certiarori refused, and petition dismissed.

Per Curiam. Petition dismissed.

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Eeade, J.

The C. C. P., S. 133, authorizes a judge to “ relieve a party from a judgment, order, or other proceedings taken against him through his mistake, inadvertence surprise, or excusable neglect,” &c. And upon application for such relief, the Judge finds the facts, and grants, or refuses the motion, and from his judgment an appeal lies by either party. This is much more convenient, expeditions, and less, expensive than an application to the Supreme Court for a Certiorari, as a substitute for an appeal. Under our new Constitution, it is much the more appropriate remedy, as the Judge below finds the facts, and we only review his legal conclusions; whereas, in applications for certiorari we have to find the facts, and although *237 it may not be within the provision, that we shall try no “ issue ” of fact; yet we prefer not to try, when it can be avoided, any “ question” of fact, as contradistinguished from an issue of fact.

In this case the facts are. seriously disputed, and we think the petitioner ought to proceed by an application to the Judge below, under O. C. P., S. 133.

Motion for certiarori refused, and petition dismissed.

Per Curiam. Petition dismissed.

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Bluebook (online)

67 N.C. 235, Counsel Stack Legal Research, https://law.counselstack.com/opinion/watson-v-shields-nc-1872.